The determination as to what constitutes the unauthorized practice of law has largely been decided by state bar associations and state courts on a case-by-case basis. These enforcement actions are not always transparent. Additionally, for some companies targeted by UPL action, settlement decisions are made strategically as a way to avoid the development of adverse case law.
Nevertheless, understanding trends in UPL enforcement can help entrepreneurs understand what kinds of cases and activities catch the attention of regulators.
A 2013 study conducted by Deborah Rhode and Lucy Ricca provides the most recent comprehensive assessment of UPL enforcement practices. Through interviews with members of state UPL committees and others responsible for UPL enforcement, the study findings give entrepreneurs a sense of broad themes in enforcement cases, including:
- subject matters most frequently at issue in UPL enforcement cases and examples of offending activities within case subject matters (pp. 2599-2602):
- general civil litigation (17%)
- trusts and estates (15%)
- family law (14%)
- housing or mortgage (13%)
- activities that are frequently at issue in UPL enforcement cases (pp. 2602-2604), including:
- filing papers in court/administrative body (39%)
- legal document assistance/completion (30%)
- giving advice (18%)
- holding self out as lawyer (10%)
- in-court appearance (10%)
More recently (2021), the National Center for Access to Justice (NCAJ) undertook a study of UPL in California. Through interviews with individuals targeted in UPL enforcement actions, California attorneys, and state regulators, the researchers found that:
- criminal charges for unauthorized practice are rarely brought in California; NCAJ identified records of only 8 misdemeanor UPL prosecutions over a ten-year period, just two of which involved non-lawyers (p. 8)
- California State Bar’s Office of Chief Trial Counsel (OCTC) has the authority to launch investigations proactively (without having received an incoming complaint), but resource constraints generally preclude such activity (p. 9)
- OCTC generally prioritizes cases that involve some risk of consumer harm but nothing more is available on the harms they encounter or on the proportion of complaints and investigations that do involve such risks (p. 9)
- the California State Bar publishes the names of people / entities that are sent a Cease and Desist; but the Bar does not publish details of UPL complaints or the potentially offending activity that led to the complaint (p. 9)
- nearly half of the Bar’s non-lawyer UPL enforcement caseload is categorized a “miscellaneous”; the second most frequent case type was family law (p. 10)
- the experience of those invested by OCTC differed based on whether they had attorney representation (p. 14)
Notably, these and other assessments verify that UPL enforcement actions are more often than not brought by attorneys and that few complaints contain actual evidence of consumer harm.